The trial balloon

The United States invariably does the right thing, after having exhausted every other alternative.

— Winston Churchill

United States Attorney General Eric Holder announced Monday the appointment of a special prosecutor, who will decide whether the Justice Department should investigate several cases of prisoner abuse at the hands of the CIA. Following the public release of a damning 2004 report by the CIA’s own Inspector General, he would have been hard-pressed not to, but you can already hear the squeals of neocon protest: It’ll weaken the United States, undermine our security, expose us as soft-bellied liberal cubs easily skewered on our own logic and feelings.

And I agree. An investigation and any subsequent prosecution could be corrosive — if it stops at the middlemen and -women, the people who take orders and implement policies authored well above their pay grades, and fails to examine the culpability of those higher up the political food chain. President Richard Nixon’s resignation in 1974 was a terrible blow to our nation’s sense of morality and justice, but much worse was President Ford’s almost immediate pardon, which guaranteed Nixon would not be indicted. As long as we allow our public officials to act above the law, they’ll do it.

But that wasn’t exactly the lesson we took from Watergate. What the system learned was to cut off any investigation before it reaches the top. Much worse for our country than Nixon’s fall: that dog-and-pony show called the Oliver North trial, which left the almost-certainly culpable President “I don’t recall” untouched. The subsequent (convenient?) revelation that Reagan suffered from early-onset Alzheimer’s well before his presidency was over left us with two nagging, equally discomforting, possibilities: Our commander-in-chief was basically incompetent for much of his presidency, or he was a crook to put Tricky Dick to shame.

On a much smaller scale, here at home we’re being asked to make a similarly distasteful choice between two unappealing explanations. As I type, the trial of five men and women accused of using, selling, and/or gifting stolen Southwest Airline tickets obtained from a former employee and her husband is under way downtown. One of those defendants, of course, is Mark Gudanowski, former investigator and driver for Bexar County District Attorney Susan Reed. Reed received at least three of those tickets through Gudanowski. County Court-at-Law Judge Monica Guerrero has acknowledged receiving two from former bailiff James Jackson, whose wife Althea “liberated” the tickets from her old job (James Jackson claims Guerrero ultimately got six of the tickets; Guerrero has not responded to the Current’s request for comment), and several other Courthouse and County officials are also implicated.

The fate of these five defendants probably hangs to a large degree on whether the jury believes Jackson, a convicted thief, when he says that he admonished everyone he sold tickets to not to tell Southwest Airlines they bought them if they were ever confronted. Well, almost everyone. According to the Express-News, Jackson said this week that perhaps he didn’t give that instruction to Gudanowski after all.

The Southwest Five are being tried under federal wire-fraud charges, not the state criminal code, but if the jury convicts them, it’ll be hard to understand why our elected officials would be entirely off the hook. Simply receiving stolen property isn’t enough to convict someone, of course; they have to know it was stolen. But that knowledge can be inferred from circumstantial evidence — in this case, for instance, the tickets, which were marked “Not for Resale” and “No cash value,” and instructions to lie about their origins, if those were in fact passed on beyond the Jacksons’ first round of customers. True, Reed and the judges reportedly received only a handful of tickets apiece, and that’s been the crux of their public defense, to the extent they’ve offered one: They only got a few tickets, and they didn’t even suspect that they might have been obtained improperly.

The problem with this situation, of course, is that it leaves us between a rock and a hard place: Either our criminal-justice professionals are no savvier than we are, or they’re above the law. Either way, they get off scot-free, unless we hold them accountable.

I just can’t shrug off the feeling that our elected officials in the judicial system should be held to a higher standard than regular janes and joes — and gauging by the comments in internet chat rooms and on E-N coverage of the trial, most of you can’t, either. Some of them went to law school, after all, where they would have studied the Texas Penal Code, which recognizes greater power sometimes means greater culpability — it even provides in some cases that a theft charge is increased to the next level when “the actor was a public servant at the time of the offense and the property appropriated came into the actor’s custody, possession, or control by virtue of his status as a public servant.” That particular statute might not technically apply here, but voters may wish to take the spirit of the law into consideration at the ballot box next year.